August 19, 2013

The New York Times has this effective new report, headlined "Death Row Improvises, Lacking Lethal Mix," discussing some of the latest notable logistical realities surrounding lethal injection protocols. Here are excerpts:

The decision by the Missouri Supreme Court to allow propofol, the same powerful anesthetic that caused the death of Michael Jackson, to be used in executions — coming at a time when Texas, Ohio, Arkansas and other states are scrambling to come up with a new drug for their own lethal injections — is raising new questions about how the death penalty will be carried out.

“The bottom line is no matter what drugs they come up with, despite every avenue these states have pursued, every drug they have investigated has met a dead end,” said Deborah Denno, a professor at Fordham Law School who studies execution methods and the death penalty. “This affects every single execution in the country. It just stalls everything, stalls the process.”

With manufacturers now refusing to supply corrections departments with the drugs they had been using for executions, some states, like Georgia, have been resorting to obtaining drugs from compounding pharmacies — specialty drugmakers — which death penalty opponents say lack the proper quality control. Other states, as they run low on their old stock of drugs and are unable to replace them, are turning to new, untried methods like propofol or simply announcing that they are searching for a solution....

[Recent developments have] left states unsure of what to do when their stockpiles run out — use some other drug like propofol, buy versions of sodium thiopental or pentobarbital from a compounding pharmacy, or abandon lethal injections altogether and return to some other form of capital punishment.

“It’s an artificially created problem,” said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which supports the death penalty. “There is no difficulty in using a sedative such as pentobarbital. It’s done every day in animal shelters throughout the country. But what we have is a conspiracy to choke off capital punishment by limiting the availability of drugs.”

The issue is expected to come to a head soon. Both Texas, the state with the busiest death house, and Ohio have said they would introduce a new lethal injection protocol in the next couple of months. Officials in both of those states have said in court filings that they would run out of their stockpiles in September.

“Corrections departments often buy a year’s supply of the drugs they use, but it has a shelf life and it’s expiring,” said Richard C. Dieter, the executive director of the Death Penalty Information Center. “I think we are about to have some new breakthroughs on what the states are using. A lot of them will probably follow whatever Texas decides to do.”

On Wednesday, the Missouri Supreme Court decided to allow executions using propofol to move ahead in October and November. There is no question that it would kill, but since it has never been used in an execution, death penalty opponents say, there is no way to say how much pain might be involved or what dose should be administered.

Arkansas had announced that it would use pentobarbital in its executions, but when that drug became unavailable, the governor refused to schedule any more executions until the state came up with a substitute — which has not happened.
California also announced, in June, that it would abandon the use of a three-drug cocktail and is studying what to replace it with.
“This drug issue is a temporary problem that is entirely fixable,” Mr. Scheidegger said. “It is not a long-term impediment to the resumption of capital punishment.”

Death penalty opponents, however, feel that the rejection of one drug after another will inevitably limit capital punishment.... There were 43 executions in the United States in 2012, Mr. Dieter said, and a slightly lower number — 30 to 40 — is expected this year....

“This issue of the drugs is just a way to stop things or slow them down,” said Robert Blecker, a professor of criminal law at New York Law School and a death penalty supporter. “It’s an abolitionist tactic to gum up the works. I know why they’re doing it. From their perspective, every death delayed is a day in favor of abolition. It’s just another tactic.”

I share the perspective that we may soon have "some new breakthroughs" on how states seek to conduct executions and that many states will "follow whatever Texas decides to do." I also expect that Texas state courts and the Fifth Circuit will be relatively unlikely to halt executions based on (inevitable?) legal challenges to any new lethal injection protocols or plans. But when and how other state courts and federal courts respond to such challenges may script whether the number of execution nationwide will continue to decline in coming years or may actually start to rise at some point in the not-too-distant future.

Comments

I have solved this problem, but no prison official is reading these comments.

Produce barbiturate using the 19th Century recipe in prison industries. Enjoin the FDA from review because this is not drug making, but poison making, subject to the EPA or Agriculture Department oversight.

Former chem major meth making prisoners would likely enjoy the assignment.

Why doesnt the AG of every DP state SUE these drug manufacturers or distributors for discrimination...how can they REFUSE to sell to one party and offer it to another. At least REVOKE their business licenses in your state. Stop them from doing business in retailiation. Why are these AG so timid?

Posted by: DeanO | Aug 20, 2013 10:15:40 AM

DeanO--

Because businesses are allowed to discriminate against whomever they want, as long as it isn't specifically prohibited by law (that is, discrimination based on race, color, creed, gender, age, and sexual orientation).

AGs could sue, but their case would be dismissed within six months.

I just wonder why states haven't tried to bring the firing squad back. It's been upheld as constitutional, and it seems like a solution that wouldn't run into too many problems. Even if you couldn't find volunteers, surely we have the technology to fully automate it at this point.

Posted by: Res ipsa | Aug 20, 2013 10:20:51 AM

res ipsa, that might be the long-term solution, but many state statutes dictate the options for execution. I wouldn't be shocked to see new statutes at the state level either not specifying the mode of execution or adding new alternatives. For those currently on death row, if the State were to change options (e.g. go from lethal injection to the electric chair), the inmates would try to claim an ex post facto violation.

Posted by: tmm | Aug 20, 2013 11:02:00 AM

@tmm

Wouldn't Rooney v. North Dakota bar such challenges?

Posted by: visitor | Aug 20, 2013 3:08:30 PM

Society doesn't like the firing squad as compared to other methods that are easier on the psyches in various respects.

visitor, I am not sure that Rooney would still be considered a valid precedent. Even if it were, I think courts would find a substantial difference between place of confinement and mode of execution especially if the new mode of execution was seen as more painful than the old one. Additionally, state constitutions might be interpreted to give additional protections beyond the federal constitution.

Posted by: tmm | Aug 20, 2013 6:02:07 PM

@tmm

Thanks you.

Posted by: visitor | Aug 20, 2013 6:17:24 PM

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